Friday, August 13, 2010

Regarding Trademark Infringements


I wonder if Dan Proctor will hit me with a lawsuit for stating my B/X Companion is meant to to be used in conjunction with

"...game systems like Labyrinth Lord, published by Goblinoid Games."

After all, I realize now that I failed to use the little "TM" symbol. And, no, I don't intend to change the text now that the thing is at the printers.

One or two of my blog readers have noted recently (in emails) that the images I've posted of the book don't appear to include the OGL text. That's because it doesn't. The reason for my lack of legalese ass-covering is two-fold:

1) I barely had enough room for the book as written...there was no extra space for legal mumbo-jumbo, and

2) I know too little about this whole OGL thing to make heads or tails of it.


Hopefully, this won't land me in any hot water. I've done my utmost best to not use any of WotC/Hasbro's IP in my game (you will not find the phrases "dungeons & dragons," "dungeon master," "carrion crawler," or "mind flayer" anywhere in my book), but it's always possible I might have missed something. I mean, does WotC own the rights to the Gygax name? I did write "Gary Gygax" once or twice.

I have read the OGL, and frankly don't get how it would even apply to my book. My book is not a "retro-clone" of anything...it certainly isn't an attempt to clone Mentzer's Companion rules. It's NOT meant to be compatible with any of WotC's published material. The fact that it is to be used in conjunction with certain out-of-print material that is owned by Hasbro, doesn't seem to warrant signing on to the OGL...it could be used in conjunction with other game systems not published by WotC, and I'm not signing licenses with them.

Anyway, as I said, I'm not using any of their "intellectual property," and something that is so clearly branded B/X Companion should hardly be considered to dilute the good name of "4th edition Dungeons & Dragons." Even people that read this blog send me emails asking what "B/X" is! I don't know how much more I could have separated myself while still creating derivative artwork of my own. Putting an OGL in my game would have been linking myself to WotC for (what appears to be) little or no gain.

And you know what? I really, REALLY don't want to be linked to WotC. At all.

I just hope Dan Proctor doesn't sue me. I don't even mention his name!

12 comments:

  1. I don't think Dan will sue you--unless I'm mistaken he has a free license for Labyrinth Lord out there anyway. Worst case scenario he'll ask you to clarify in future printings.

    So far as the OGL is concerned, as long as you're not reproducing text from any existing rulebook, or using trademarked terminology, you should be fine. You cannot copyright rules, only the expressions thereof.

    That being said, the use of D&D terminology such as those specific six ability scores and AC for Armor Class is somewhat gray. I mean, one cannot trademark "Strength, Dexterity, Intelligence, Wisdom, Constitution, Charisma," but an argument could be made for those six used in conjunction.

    However, given that you did NOT use the OGL, that leaves you free to indicate compatibility with any system you like (including Labyrinth Lord). The only trouble you could run into is if you used open content in your document and did not use the OGL.

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  2. @ Jason:

    See, that's the point I don't get: "open content."

    What the hell is open content? I wouldn't know if I was using it or not because I don't know what it is. And ignorance is no defense in the eyes of the law (I remember that back from my pre-law days...).

    IP I get. Trademarks I get (but don't bother noting...sorry Dan!). "Open content"...WTF is that?

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  3. If you get permission to use a (TM) you can use it in an OGL product. So just send Dan and e-mail and ask permission. I suspect he'll say ok - he's pretty laid back. That's just an FYI, since you're not using the OGL.

    As a publisher, I say you *MUST* make time for the legal mumbo-jumbo *especially* if you're not going to use the OGL. Although the laws are less familiar to most people than the ones everyone interacts with, they're just as important, albeit for different reasons. They're just like the laws concerning doctors or mechanics or electricians - they're specialized for the field, but just as important as the normal non-specialized laws that cover things like theft, assault, and murder.

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  4. I did not use the OGL in my Supplement V: CARCOSA, and I've been selling that for 22 months with no problems.

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  5. From recent issues mainly the TSR1 Insidious thing what I've gleaned is that you can't copyright game rules and you either have to used the OGL or leave it out entirely. OSRIC apparently doesn't use it and carefully kept all D&D references out so they are supposedly fine. Your description makes me believe you are fine though I'm not a lawyer nor do I play one on tv. Be cautious ask questions of experienced people. My take from seeing Mr. Proctor post on message boards is that he's a nice guy who loves the game and might be willing to give you some advice.

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  6. I suppose the question is how did you write the B/X Companion? If you used text from the SRD then you have to use the OGL since you are using text that is copyrighted by WotC. The OGL allows you to use that text without specifically asking WotC's permission.

    Frankly I would not attempt to publish anything D&D related unless it included the OGL. So you can't say "compatible with D&D Basic and Expert sets" that is not a big deal. You can easily say "compatible with basic fantasy RPGs" everyone knows what you mean.

    The OGL works and has worked well for 10+ years. If you have too, include a sheet of the license in the box.

    As far as Dan Procter goes, email him and ask.

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  7. Essentially what Tim describes in his first paragraph is open content. Open content is any text from any game published under the Open Game License (OGL) which has been declared "open." If you look at a product that uses the OGL you will find either at the very front or just before the OGL itself, a paragraph or two of text labeled "Designation of Open Game Content." This text declares what portions of the book are allowable to use if you are publishing a product using the OGL.

    Essentially what the OGL does is create a library of free text that you can reprint, modify, and use as you like so long as you include the OGL and attribute your source. The price of this is that you are also expected to add a small amount of text to the library.

    The original core of the OGL was WotC's System Reference Document (SRD), which comprises the bulk of the D&D 3.x rules. Since then literally thousands of products have added text to this "Open Content library" (which sadly nobody has taken the time or effort to host completely), including non-d20 systems (FUDGE and FATE are, iirc, under the OGL now).

    So quite simply, if you have borrowed text from any source that was published using the open game license, or can be found in the WotC 3.x SRD, you need to use the open game license. If you have not borrowed text from an open game source, you are *probably* okay, though without seeing your product it's tough to say for sure.

    Hope that helps, but all of that being said, jgbrowning is 100% correct. You would do well to take some time to study all of this and understand it in today's game publishing climate.

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  8. It would have been better to include some tiny text saying "Labyrinth Lord and Goblinoid Games are trademarks of Daniel Proctor." Otherwise, from what you've said here, it sounds like you're OK.

    If you're not using any Wizards IP, there's no reason to use the OGL. I'm not convinced that the OGL does anything besides trade the implied promise of safe harbor in exchange for abiding by restrictions on what would otherwise be fair trademark use.

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  9. @ Everyone: Thanks for the input. A few notes:

    - I'm not saying the book is compatible with ANYthing. I'm saying it's designed to supplement certain fantasy role-playing games, of which LL is one.

    - It's not copying/using ANYthing from the SRD or anything WotC. If I include "titan" as a monster, that ain't IP of WotC/Hasbro...I suppose it's IP of ancient Greece.

    - I'm not cutting and pasting text from ANY game source, as far as I can tell. Even my tables are different from the ones in the original B/X books because A) they correct certain discrepancies (or what appear to be discrepancies), and/or B) they cover a more extended (or less extended) matrix than other sources. Fuck them if they think they can copyright a number!

    The more I think about it (and the more info I get) the less I think I need to have anything to do with the OGL. As my book would certainly help sell LL (if not the Advanced Edition Companion), I don't *think* Mr. Proctor would object to the use of his name in my book. On the other hand, it's not directly compatible with LL as he strays away from true B/X with his spell lists and combat matrices. Who knows...I hope he'll buy a copy, if only just for fun...

    : )

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  10. I’m not IP lawyer, but I’ve always thought the OGL was a raw deal. Unless you want to make a game that’s a tweak of the SRD, it seems like you lose a lot more than you gain.

    I suspect your Companion will be in the clear.

    The one thing that always makes me nervous, though, is the derivative work parts of copyright law. It isn’t clear to me what counts as a derivative work and what doesn’t.

    So quite simply, if you have borrowed text from any source that was published using the open game license, or can be found in the WotC 3.x SRD, you need to use the open game license.

    Just because I like to nitpick... ^_^ Text can be licensed under more than one license at the same time. So, you may have the choice of another license and can always try to negotiate a separate license. (Perhaps not very applicable to Wizards’ SRD, but it could apply to other OGC.)

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  11. JB

    You *might* be ok. I am not a lawyer, but I was the OGL compliance guy for Eden's "Liber Bestarius" back in dawn age of 3.0. Plus Jason and I have done a lot of work with the SRD/d20/OGL blob.

    For me I would use the OGL myself and not worry that I couldn't use "Mind Flayer" or say the words "Dungeons and Dragons". Plus it would be a good way for others to be able to use my stuff in a very clear way.

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  12. @ Rob: I certainly hope I AM in the clear. I guess we'll see...

    @ Tim: I know you've been blogging about this yourself. Personally, I see Mind Flayers as a part of "Gary's Particular Campaign World" and they don't concern me too much. I'd rather create my own brain-sucking weirdness!

    ; )

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